The chairman opened the meeting by requesting the secretary to give a
resume of the minutes of the previous meeting, which was done.

The chairman then called on Mr. Vogel to discuss the research he had done
in regard to plea bargaining, which he did, stating that he had found
little material beyond the work done by the Minimum Standards for
Criminal Justice Project of the American Bar Association, of which the
committee members had copies. A general discussion of plea bargaining
followed.

The chairman requested Mr. Vogel to draft a rule relating to plea
bargaining for presentation at a future committee meeting. Judge Muggli
asked if Mr. Vogel should draft a rule dealing with reduction of the
charge, rather than one under which the judge would commit himself ahead
of time to what the sentence would be. A discussion followed. It was
agreed that Mr. Vogel should be free to draft the rule as he saw fit, and
it would be discussed fully at a later meeting.

Judge Ilvedson read his draft of Rule 7(a) as follows:

Rule 7. The indictment and the Information.

(a) Use of Indictment or Information. All offenses against the State of
North Dakota shall be prosecuted by indictment or by information.

Judge Ilvedson moved to amend his draft of Rule 7(a) by inserting the
words "triable in the district court" after the word "Dakota." Judge
Smith seconded the motion. The motion carried.

Judge Ilvedson moved to amend his draft of Rule 7(a) by inserting the
word "therein" after the word "prosecuted." Judge Muggli second the
motion. The motion carried.

Mr. Sand moved that the wording of Rule 7(a) be as follows:

(a) Use of indictment or Information. All offenses against the State of
North Dakota triable in the district court, if prosecuted therein, shall
be prosecuted by indictment or information.

There was no second to Mr. Sand's motion.

Judge Ilvedson moved that Rule 7(a) should read as follows:

(a) Use of Indictment or Information. All offenses against the State of
North Dakota, if prosecuted in the district court, shall be prosecuted by
indictment or information.

Judge Muggli seconded the motion. The motion carried.

Judge Ilvedson read Federal Rule 7(b), Waiver of Indictment, and moved
that Rule 7(b) be omitted from the North Dakota rules, retaining the
parenthetical letter for ease of comparison with Barron & Holtzoff. Mr.
Shaft seconded the motion. The motion carried.

Judge Ilvedson read his draft of Rule 7(c) and moved its adoption, noting
that it differed from the federal rule only in the substitution of the
words "prosecuting attorney" for the words "attorney for the government."
Mr. Shaft seconded the motion.

-2-

Minutes of July 25-26, p. 2

There followed a discussion of N.D.C.C. § 29-11-10.1--Charging crimes in
separate counts and consolidating indictments and informations, which is
to be superseded by Rule 8; and of N.D. Const § 97, which provides that
all prosecutions shall conclude "against the peace and dignity of the
State of North Dakota," which will be repealed if Senate Concurrent
Resolution "UU" [S.L. 1967, ch. 517] passes in the primary election to be
held in September. It was noted that the provisions of N.D. Const. § 97
are also contained in N.D.C.C. § 29-11-06. It was generally agreed that
Rule 7(c) should be passed in the wording suggested by Judge Ilvedson,
keeping in mind that it will stand if SCR "UU" passes and will have to be
revised if "UU" is defeated.

The question being on Judge Ilvedson's motion, the motion carried. Rule
7(c) as adopted reads:

Rule 7. The Indictment and the Information.

(c) Nature and Contents. The indictment or the information shall be a
plain, concise and definite written statement of the essential facts
constituting the offense charged. It shall be signed by the prosecuting
attorney. It need not contain a formal commencement, a formal conclusion
or any other matter not necessary to such statement. Allegations made in
one count may be incorporated by reference in another count. It may be
alleged in a single count that the means by which the defendant committed
the offense are unknown or that he committed it by one or more specific
means. The indictment or information shall state for each count the
official or customary citation of the statute, rule, regulation, or other
provision of law which the defendant is alleged therein to have violated.
Error in the citation or its omission shall not be ground for dismissal
of the indictment or information or for reversal of a conviction if the
error or omission did not mislead the defendant to his prejudice.

Judge Ilvedson read his draft of Rule 7(d) and moved its adoption, noting
that it was the same as the federal rule and that it would supersede
N.D.C.C. § 29-11-44--Surplusage. Mr. Sand seconded the motion. The
motion carried. Rule 7(d) as adopted reads:

Rule 7. The Indictment and the Information.

(d) Surplusage. The court, on motion of the defendant, may strike
surplusage from the indictment or information.

Judge Ilvedson read his drafts of Rule 7(e) and 7(f), noting that they
were the same as the federal rule. They read:

Rule 7. The Indictment and the Information.

(e) Amendment of Information. The court may permit an information to be
amended at any time before verdict or finding if no additional or
different offense is charged and if substantial rights of the defendant
are not prejudiced.

(f) Bill of Particulars. The court may direct the filing of a bill of
particulars. A motion for a bill of particulars may be made before
arraignment or within ten days after arraignment or at such later time as
the court may permit. A bill of particulars may be amended at any time
subject to such conditions as justice requires.

There followed a discussion of Rule 7(f). Judge Ilvedson moved the
adoption of Rule 7(f) as read. Judge Muggli seconded the motion. Further
discussion followed, particularly in regard to the amendment of a bill of
particulars.

Judge Erickstad appointed a subcommitte of Judge Ilvedson, chairman,
Judge Morris, Mr. Sand, and Mr. Vogel to work on an amended draft of Rule
7(f) over the lunch hour.

-3-

Minutes of July 25-26, 1968, p. 3

Mr. Graham read from State v. Bauer, 153 N.W.2d 895 (N.D. 1967).

In discussing Rule 7(e) it was brought out by Judge Muggli and Mr. Sand
that perhaps some provision for the amendment of a complaint should be
made (Rule 3).

Judge Smith stated that he felt the rules should be written to retain the
holding in State v. Buehler, 125 N.W.2d 155 (N.D. 1963).

The chairman appointed a subcommittee of Judge Muggli, chairman, Mr.
Glaser, and Judge Smith to work on a revision of Rule 7(a) over the lunch
hour.

At 11:50 a.m. the committee recessed, reconvening at 1:30 p.m.

It was noted that the following cases and statute should be considered in
connection with Rule 7: State v. Buehler, 125 N.W.2d 155 (N.D. 1963);
State v. Gill, 154 N.W.2d 791 (N.D. 1967); State v. Starratt, 153 N.W.2d
311 (N.D. 1967); N.D.C.C. § 29-09-03--Prosecution on information without
waiting for term of court.

Judge Muggli moved that the committee should hold a night meeting and
adjourn at noon on Friday. It was decided by general agreement that this
should be done.

The chairman took notice of Mr. John A. Graham's assistance as law clerk
during the past year, and informed the committee that Mr. Graham was now
employed by the Legislative Research Committee.

Judge Ilvedson read Rule 7(f) as revised by the subcommittee as follows:

Rule 7. The Indictment and the Information.

(f) Bill of Particulars. The court may direct the filing of a bill of
particulars. A motion for a bill of particulars may be made before
arraignment or within ten days after arraignment or at such later time as
the court may permit. A bill of particulars should be granted where it
appears to the court necessary to protect the defendant against a second
prosecution for the same offense or to enable the defendant to adequately
prepare for trial. The motion shall be in writing and shall specify the
particulars sought by the defendant. A bill of particulars may be amended
at any time subject to such conditions as justice requires.

Judge Muggli moved that the words "one day" be inserted in lieu of the
words "ten days." Mr. Sand seconded the motion. The motion carried. Rule
7(f) as adopted reads:

Rule 7. The Indictment and the Information.

(f) Bill of Particulars. The court may direct the filing of a bill of
particulars. A motion for a bill of particulars may be made before
arraignment or within one day after arraignment or at such later time as
the court may permit. A bill of particulars should be granted where it
appears to the court necessary to protect the defendant against a second

prosecution for the same offense or to enable the defendant to adequately
prepare for trial. The motion shall be in writing and shall specify the
particulars sought by the defendant. A bill of particulars may be amended
at any time subject to such conditions as justice requires.

-4-

Minutes of July 25-26, 1968, p. 4

Judge Muggli moved that the action by which the committee had adopted
Rule 7(a) be rescinded and that the following wording, prepared by the
subcommittee, be adopted:

Rule 7. The Indictment and the Information.

(a) All prosecutions in the district court, including appeals, shall be
prosecuted by indictment or information.

He stated that the subcommittee was of the mind to overrule State v.
Bauer, supra, and that their idea was to include proceedings tried in
city court and appealed to the district court.

Judge Ilvedson moved that Rule 7(e) be adopted as read. [See p. 2 for
wording.] Mr. Glaser seconded the motion. The motion carried.

There followed a discussion of whether the rules when printed should
contain a table of superseded statutes. Judge Erickstad said he thought
the rules should be interpreted case by case. Judge Smith said he feels
that an attempt at least should be made to set up a table of superseded
statutes. Mr. Sand said that he thinks the committee should work as a
group and go over them all at the end. Judge Muggli said that he thinks
that we should start at the beginning of the statutes and go through them
one by one when we have finished work on the rules.

Mr. Shaft read his draft of Rule 12(a) as follows:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections.

(a) Pleadings and Motions. Pleadings in criminal proceedings shall be the
indictment and the information, and, in County Court of Increased
jurisdiction, Municipal court, or county justice court, the complaint,
and the pleas of not guilty, and nolo contendere. All other pleas,
demurrers, and motions to quash are abolished. Defenses and objections
raised before trial shall be raised only by motion to dismiss or to grant
appropriate relief, as provided in these rules.

It was noted that N.D.C.C. § 29-14-15--Pleas classified, would be
superseded.

A discussion of the plea of nolo contendere followed.

Following discussion Mr. Shaft agreed to amend his wording to insert the
words "in district court" after the word "information," to insert the
words "the complaint" before the words "in county court of increased
jurisdiction," and to delete the words "the complaint" after the words
"county justice court."

Mr. Shaft moved that Rule 12(a) be adopted as amended. Judge Morris
seconded the motion. The motion carried. The following members asked to
be recorded as voting in opposition to the motion: Judge Muggli; Mr.
Sand; Mr. Vogel.

Rule 12(a) as adopted reads:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections.

(a) Pleadings and Motions. Pleadings in criminal proceedings shall be the
indictment and the information in district court, and the complaint in
county court of increased jurisdiction, municipal court, or county
justice court, and the pleas of not guilty, guilty, and nolo contendere.
All other pleas, demurrers, and motions to quash are abolished. Defenses
and objections raised before trial shall be raised only by motion to
dismiss or to grant appropriate relief, as provided in these rules.

-5-

Minutes of July 25-26, 1968, p. 5

Mr. Shaft read his drafts of Rule 12(b)(1) and 12(b)(2) as follows:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections.

(b) The Motion Raising Defenses and Objections.

(1) Defenses and Objections which May Be Raised. Any defense or objection
which is capable of determination without the trial of the general issue
may be raised before trial by motion.

(2) Defenses and Objections which Must Be Raised. Defenses and objections
based on defects in the institution of the prosecution or in the
complaint, indictment, or information, other than that it fails to show
jurisdiction in the court or to charge an offense may be raised only by
motion before trial. The motion shall include all such defenses and
objections then available to the defendant. Failure to present such
defense or objection as herein provided constitutes a waiver thereof, but
the court for cause shown may grant relief from the waiver. Lack of
jurisdiction or the failure of the complaint, indictment, or information
to charge an offense shall be noticed by the court at any time during the
pendency of the proceeding.

Mr. Shaft moved the adoption of Rule 12(b)(1) and 12(b)(2) as read. Mr.
Sand seconded the motion. The motion carried.

Mr. Shaft read his draft of Rule 12(b)(3) as follows:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections.

(b) The Motion Raising Defenses and Objections.

(3) Time of Making Motion. The motion shall be made before the plea is
entered, but the court may permit it to be made within a reasonable time
thereafter, without withdrawal of the plea.

Mr. Shaft moved the adoption of Rule 12(b)(3) as read. Judge Smith
seconded the motion. The motion carried.

Mr. Shaft read his draft of Rule 12(b)(4) as follows:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections.

(b) The Motion Raising Defenses and Objections.

(4) Hearing on Motion. A motion before trial raising defenses or
objections shall be determined before trial unless the court orders that
it be deferred for determination at the trial of the general issue. An
issue of fact shall be tried by a jury if a jury trial is required under
the Constitution or statute. All other issues of fact shall be determined
by the court with or without a jury or on affidavits or in such other
manner as the court may direct.

Mr. Sand read a part (§ 701, amending ch. 223, tit. 18, USC, relating
to witnesses and evidence) of the Crime Control Act of 1968, Public Law
90-351, HR 5037 of the 90th Congress, which part deals with admissibility
of confessions.

-6-

Minutes of July 25-26, 1968, p. 6

Mr. Graham noted that the committee should study the case of Jackson v.
Denno, 378 U.S. 361, 84 Sup.Ct. 1774, 12 L.Ed.2d 908, which has to do
with the admissibility of a confession.

Mr. Shaft moved the adoption of his draft of Rule 12(b)(4) with the
following amendment: Before the word "Constitution" insert the words
"United States"; and after the word "Constitution" insert a comma and the
words "North Dakota Constitution" followed by a comma.

Judge Smith moved the adoption of Mr. Shaft's draft of Rule 12(b)(4) with
the following amendment: Delete the words "under the Constitution or
statute" and insert in lieu thereof the words "by law." Mr. Glaser
seconded the motion. The question being on Judge Smith's motion, the
motion failed of passage.

(4) Hearing on Motion. A motion before trial raising defenses or
objections shall be determined before trial unless the Court orders that
it be deferred for determination at the trial of the general issue. An
issue of fact shall be tried by a jury if a jury trial is required under
the United States Constitution, the North Dakota Constitution, or
statute. All other issues of fact shall be determined by the court with
or without a jury or on affidavits or in such other manner as the court
may direct.

The chairman noted that for purposes of reference mention should be made
in the minutes of § 701 of the Crime Control Act of 1968, supra;
Jackson v. Denno, supra; and Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d
694, 86 S.Ct. 1602; 10 A.L.R.3d 974.

Mr. Shaft read his draft of Rule 12(b)(5) and moved its adoption. Judge
Morris seconded the motion. The motion carried. Rule 12(b)(5) as adopted
reads:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections.

(b) The Motion Raising Defenses and Objections.

(5) Effect of Determination. If a motion is determined adversely to the
defendant he shall be permitted to plead if he had not previously
pleaded. A plea previously entered shall stand. If the court grants a
motion based on a defect in the institution of the prosecution or in the
complaint, indictment, or information, it may also order that the
defendant be held in custody or that his bail be continued for a
specified time pending the filing of a new indictment, information, or
complaint. Nothing in this rule shall be deemed to affect the provisions
of any act of the legislature relating to periods of limitations.

Mr. Shaft discussed briefly the statutes which he believes will
superseded by Rule 12 and listed them as follows: §§ 29-11-01, 29-11-02, 29-11-13,
29-14-01, and 29-14-03 through 29-14-15.

Judge Muggli read his draft of Rule 17(a) as follows:

Rule 17. Subpoena.

(a) For Attendance of Witnesses; Form; Issuance. A subpoena shall be
issued by the magistrate or the clerk under the seal of the court. It
shall state the name of the court and the

-7-

Minutes of July 25-26, 1968, p. 7

title, if any, of the proceeding, and shall command each person to whom
it is directed to attend and give testimony at the time and place
specified therein. The magistrate or clerk shall issue a subpoena, signed
and sealed but otherwise in blank, to the party requesting it, who shall
fill in the blanks before it is served.

Mr. Vogel moved the adoption of Judge Muggli's draft of Rule 17(a) as
read. Judge Muggli seconded the motion.

Judge Smith moved that the words "magistrate or" be deleted from the last
sentence, and that the following sentence be added at the end: "A
subpoena shall be issued by a magistrate in a proceeding before him, but
it need not be under the seal of the court." Judge Muggli seconded the
motion.

A discussion followed, particularly relating to the necessity of a seal.

The chairman appointed a subcommittee of Judge Muggli, chairman, Judge
Smith, Mr. Sand, and Mr. Glaser, to work on a new draft of Rule 17(a)
over the dinner recess.

The meeting recessed at 5:10 p.m. and reconvened at 7:10 p.m., with the
same persons present as before.

Judge Muggli read his draft of Rule 17(b) and moved its adoption, noting
that it was the same as the federal rule except for the substitution of
the word "prosecution" for the word "government." Mr. Sand seconded the
motion. The motion carried. Rule 17(b) as adopted reads:

Rule 17. Subpoena.

(b) Defendants Unable to Pay. The court shall order at any time that a
subpoena be issued for service on a named witness upon an ex parte
application of a defendant upon a satisfactory showing that the defendant
is financially unable to pay the fees of the witness and that the
presence of the witness is necessary to an adequate defense. If the court
orders a subpoena to be issued, the costs incurred by the process and the
fees of the witness so subpoenaed shall be paid in the same manner in
which similar costs and fees are paid in the case of a witness subpoenaed
in behalf of the prosecution.

Judge Muggli read the draft of Rule 17(a) as revised by the subcommitte
and moved its adoption in lieu of the original draft. Mr. Glasser
seconded the motion. By discussion it was agreed to insert the words "or
objects" after the words "documentary evidence" wherever those words
appear. The question being on Judge Muggli's motion as amended, the
motion carried. Rule 17(a) as adopted reads:

Rule 17. Subpoena.

(a) For Attendance of Witnesses; Form; Issuance.

(1) Every subpoena shall be issued by the magistrate or the clerk of
court, shall state the name of the court and the title of the action, and
shall command each person to whom it is directed to attend and give
testimony at a time and place therein specified. The clerk or magistrate
shall issue a subpoena, or a subpoena for the production of documentary
evidence or objects, signed but otherwise in blank, to a party requesting
it, who shall fill it in before service.

(2) A subpoena, or a subpoena for the production of documentary evidence
or objects, may also be issued by the attorney for a party to any action
or proceeding in the name of the court in like manner and with the same
effect as if issued by the clerk or magistrate. Such subpoena shall be
subscribed in the name of the attorney, together with his office address,

A subpoena may also command the person to whom it is directed to produce
the books, papers, documents, or other objects designated therein. The
court on motion made promptly may quash or modify the subpoena if
compliance would be unreasonable or oppressive. The court may direct that
books, papers, documents, or objects designated in the subpoena be
produced before the court at a time prior to the trial or prior to the
time when they are to be offered in evidence and may upon their
production permit the books, papers, documents, or objects, or portions
thereof to be inspected by the parties and their attorneys.

Judge Muggli read his draft of Rule 17(d) as follows:

Rule 17. Subpoena.

(d) Service. A subpoena may be served by any peace officer or any other
person who is not a party and who is not less than 18 years of age.
Service of a subpoena shall be made by delivering a copy thereof to the
person named and by tendering to him the fee for 1 day's attendance and
the mileage allowed by law. Fees and mileage need not be tendered to the
witness upon service of a subpoena issued in behalf of the prosecution.

Mr. Vogel moved that Judge Muggli's draft be amended by inserting the
following words after the word "prosecution" in the last sentence "or in
behalf of a defendant unable to pay, pursuant to Rule 17(b)." Judge
Muggli seconded the motion. The motion carried.

Mr. Vogel moved that Judge Muggli's draft be further amended by giving it
the designation (1) and by adding paragraphs (2) and (3), except for the
last sentence of (3) of Rule 45 of the North Dakota Rule of Civil
Procedure. Judge Muggli seconded the motion. The motion carried. Rule
17(d) as adopted reads:

Rule 17. Subpoena.

(d) Service.

(1) A subpoena may be served by any peace officer or any other person who
is not a party and who is not less than 18 years of age. Service of a
subpoena shall be made by delivering a copy thereof to the person named
and by tendering to him the fee for 1 day's attendance and the mileage
allowed by law. Fees and mileage need not be tendered to the witness upon
service of a subpoena issued in behalf of the prosecution or in behalf of
a defendant unable to pay, pursuant to Rule 17(b).

(2) If either party to an action shall deposit with the sheriff traveling
fees and fees for 1 day's attendance of any witness, a subpoena for such
witness, and a written demand that such witness be served by mail,
telegraph, or telephone, the sheriff shall serve and make return of such
subpoena by:

1. Registered or certified return receipt requested mail.

2. Telegram to the witness, setting forth the subpoena in full, and the
sheriff shall demand from the telegraph company a service message showing
the delivery or nondelivery of such telegram and such officer, upon
receipt of such message, shall make his return accordingly. Such service
message, if it shows delivery, shall be prima facie evidence of such
service; or

-9-

Minutes of July 25-26, 1968, p. 9

3. Reading the subpoena over the telephone to the person to be served and
if the person upon whom service is made shall acknowledge his identity
over the telephone to the officer making the service, such acknowledgment
shall be prima facie evidence of service and the officer shall make his
return accordingly.

No deposit of traveling fees or witness fees shall be required if such
fees are to be paid by this state or any political subdivision thereof.
If service is made pursuant to the provisions of this section, the
sheriff, in lieu of mileage, per diem, and livery, shall receive the cost
of postage, telegrams, or telephone calls. If the witness so served fails
to appear, the sheriff shall return the deposit to the party who made the
same.

(3) A witness personally served with a subpoena, except when the fees of
such witness are to be paid by this state or any political subdivision
thereof, may demand his traveling fees and per diem for one day's
attendance at the time the subpoena is served upon him and if such fees
are not paid the witness shall not be obliged to obey the subpoena. The
fact of such demand and nonpayment shall be stated in the return. A
witness served with a subpoena by mail, telephone, or telegraph, upon his
appearance, may demand and shall receive from the sheriff his traveling
fees and per diem for one day's attendance, except when fees of such
witness are to be paid by this state or any political subdivision
thereof.

Judge Muggli read his draft of Rule 17(e) and moved its adoption. Judge
Smith seconded the motion.

The secretary was instructed to make note that § 31-03-25--Summoning
witness in this state to testify in another state, and possibly other
sections of ch. 31-03--Means of compelling attendance of witnesses, should
be retained.

Mr. Glaser noted that he thought that §§ 31-03-13--Service of
Subpoenas--Proof--Peace officers required to make, and 31-01-14--Places
where person may be compelled to attend as witnesses in criminal matters,
should be superseded by Rule 17(e).

Discussion followed. The question being on the motion to adopt Judge
Muggli's draft of Rule 17(e), the motion carried. Rule 17(e) as adopted
reads:

Rule 17. Subpoena.

(e) Place of Service.

(1) In North Dakota. A subpoena requiring the attendance of a witness at
a hearing or trial may be served anywhere within North Dakota.

(2) Witness from Another State. Service on a witness outside this state
shall be made only as provided by law.

Judge Muggli read his draft of Rule 17(f) and moved its adoption with the
provision that it be reexamined after adoption of Rule 15, relating to
depositions. Mr. Sand seconded the motion. The motion carried Rule 17(f)
as adopted reads:

Rule 17. Subpoena.

(f) For Taking Deposition; Place of Examination.

(1) Issuance. An order to take a deposition authorizes the issuance by
the clerk of court or a magistrate of subpoenas for the persons named or
described therein.

(2) Place. A resident of North Dakota whose deposition is to be taken may
be required to attend an examination only in the county wherein he
resides or is employed or transacts his business

-10-

Minutes of July 25-26, 1968, p. 10

in person. A non-resident of North Dakota may be required to attend in
accordance with the law of the state in which he is served.

Judge Muggli read his draft of Rule 17(g) and moved its adoption. Judge
Smith seconded the motion. The motion carried. Rule 17(g) as adopted
reads:

Rule 17. Subpoena.

(g) Contempt. Failure by any person without adequate excuse to obey a
subpoena served upon him may be deemed a contempt of the court from which
the subpoena issued.

Judge Muggli read his draft of Rule 17.1 and moved its adoption. Judge
Ilvedson seconded the motion. The motion carried. Rule 17.1 as adopted
reads:

Rule 17.1. Pre-trial Conference. Any time after the filing of the
indictment, information, or complaint, the court upon motion of any party
or upon its own motion may order one or more conferences to consider such
matters as will promote a fair and expeditious trial. At the conclusion
of a conference the court shall prepare and file a memorandum of the
matters agreed upon. No admissions made by the defendant or his attorney
at the conference shall be used against the defendant unless the
admissions are reduced to writing and signed by the defendant and his
attorney. This rule shall not be invoked in the case of a defendant who
is not represented by counsel.

Judge Morris resumed his discussion of Rule 18, stating that he feels
that it should be considered in conjunction with Rules 19 and 20, which
relate to Change of Venue and to Prosecution on Information Outside of
County Before any Judge Within Judicial District Without Waiting for Term
of Court.

Mr. Sand read his drafts of Rules 19 and 20, and Mr. Persinger read his
drafts of Rules 21 and 22, relating to Transfer from the County for Trial
and to Time of Motion to Transfer. A discussion of the interrelated
problems of these rules followed.

-11-

Minutes of July 25-26, 1968, p. 11

The chairman appointed a subcommittee of Judge Morris, Mr. Sand, and Mr.
Persinger to work on Rules 18 through 22 and report at the next meeting.

At about 10:30 Mr. Shaft left the meeting.

Judge Muggli brought up the question: Will the rules of criminal
procedure apply to juvenile cases? A discussion followed. The chairman
appointed Judge Muggli to make a study of the question.

Mr. Glaser read his draft of Rule 23(a) as follows:

Rule 23. Trial by Jury or by the Court.

(a) Trial by Jury. Cases required to be tried by jury shall be so tried
unless the defendant waives a jury trial in writing or in open court,
with the approval of the court and the consent of the prosecution. In all
cases the commencement of the taking of testimony by the court without a
jury shall be deemed a waiver of the right to trial by jury.

Judge Ilvedson suggested that the words "entered upon the minutes" be
inserted after the words "open court." There being no objection, this
change was made in the draft.

Judge Ilvedson moved that the last sentence of the draft be deleted.
Judge Morris seconded the motion. The motion carried.

Mr. Glaser moved that Rule 23(a) be adopted as amended. Judge Smith
seconded the motion. The motion carried. Rule 23(a) as adopted reads:

Rule 23. Trial by Jury or by the Court.

(a) Trial by Jury. Cases required to be tried by jury shall be so tried
unless the defendant waives a jury trial in writing or in open court,
entered upon the minutes, with the approval of the court and the consent
of the prosecution.

The secretary was instructed to note that Rule 23 should be indexed in
the printed rules under Waiver as well as under Trial by Jury.

Mr. Sand moved that the title of Rule 23 be amended to read "Waiver of
Trial by Jury." Judge Ilvedson seconded the motion. Discussion followed
and other suggestions for change in title were made.

Mr. Glaser read Federal Rule 23(b) and (c) as follows:

[Federal] Rule 23. Trial by Jury or by the Court.

(b) Jury of Less Than Twelve. Juries shall be of 12 but at any time
before verdict the parties may stipulate in writing with the approval of
the court that the jury shall consist of any number less than 12.

(c) Trial Without a Jury. In a case tried without a jury the court shall
make a general finding and shall in addition on request find the facts
specially. If an opinion or memorandum of decision is filed, it will be
sufficient if the findings of fact appear therein.

Mr. Glaser stated that he thought that a rule like Federal Rule 23(b)
might not be permissible in this state under § 7 of our constitution,
that he could find no provision similar to that of 23(c) applicable to
any of our state courts, and that he thought 23(c) should be omitted. A
discussion of Rule 23(c) followed.

-12-

Minutes of July 25-26, 1968, p. 12

Mr. Sand withdrew his motion regarding the title of Rule 23 and Judge
Ilvedson withdrew his second.

Judge Muggli moved that Rule 23(b) be omitted, Mr. Sand seconded the
motion. After discussion, centering on the possibility of agreement by
stipulation on a jury of fewer than twelve, Judge Muggli withdrew his
motion, and Mr. Sand withdrew his second.

Mr. Glaser moved that the committee adopt Federal Rule 23(b) as North
Dakota Rule 23(b). Judge Morris seconded the motion. Judge Smith stated
that he wished to be recorded as voting nay; however, a vote was not
taken at the time. The chairman appointed Judge Smith to make a special
report on Rule 23(b) at the next meeting.